Crowther: Bench was not what I hoped it would be
Being a higher court judge is “saleable”, with post-judicial work “as significant a perk for many as the knight/damehood”, a former circuit judge has claimed.
But Tom Crowther KC argued that none of the traditional arguments against judges returning to practice applied below the High Court.
Mr Crowther was a circuit judge from 2013 to 2018. From 2019 to 2022, alongside his return to criminal practice, he chaired the independent inquiry into Telford child sexual exploitation. He recently moved from Serjeants’ Inn Chambers to 23ES.
He was writing on LinkedIn in the wake of research published last week that said retired judges who engaged in legal work after their retirement should be regulated by the Bar Standard Board or Solicitors Regulation Authority.
Mr Crowther said the research showed that any convention that former judges should not give legal advice was “now pretty much dead, at last so far as the senior judiciary is concerned”, with nearly 75% of judges from the High Court and above taking on some form of post-retirement legal work.
“But [the authors] also make the point that the reputational and practical difficulties in ex-judges returning to legal work really only apply to [High Court] judges and above.
“For the lower ranks, particularly in crime, none of the traditional arguments against… – undue influence over former colleagues on the bench, the impropriety of selling judicial experience and the perception of bias in the event of a judge joining a firm of chambers known to them through judicial work – apply below the High Court or survive exposure to the reality of a system that depends on swathes of fee-paid (part-time) judges.
“After all, a recorder (a part-time circuit judge) may have in front of them their head of chambers, the principal of the firm that sends them all their work as a lawyer, or the lawyer who wrote the book on an esoteric point they are being asked to decide.
“Any influence there is likely to be far stronger than some ex-circuit judge from Wales appearing in front of the long serving resident of, say, Preston or Nottingham Crown Court.”
Mr Crowther said that, while the “impropriety of selling judicial experience” was difficult to argue against, it was “more honoured in the breach” when Brick Court has Lords Hoffman, Phillips and Hope listed amongst its other barristers and former High Court judge Sir Wyn Williams, currently chairing the Post Office inquiry, headed the list of barristers on Civitas Law’s website.
“And I’ve yet to know a recorder, fee-paid tribunal judge or part-time parking adjudicator who doesn’t put it on their chambers’ or firm’s websit,” he added.
Mr Crowther also cast doubt on what a circuit judge in the criminal courts could do to help themselves or their prospects.
“The reality is that it is being a High Court judge or above that is saleable and the research shows that post-judicial work has become as significant a perk for many as the knight/damehood.
“Until now, the ‘good chap’ theory has held sway: the senior judiciary can be trusted to do post-retirement work because they’re rather special people.
“The rank and file? Not so much, although I’d suggest it’s we rank and file who can safely leave without causing the difficulties that caused so much pearl-clutching in 2007.”
This referred to a paper from the Judges Council that came out strongly against a government proposal to allow all judges below High Court level to return to practice. While acknowledging that there were no legal prohibitions from doing so, it said all judges should have to abide by the convention.
Mr Crowther said there would be “others like me who found that the job wasn’t what they’d hoped” and should be able to return to practice.
“They shouldn’t have to, as I did, resign without knowing if the MoJ [Ministry of Justice] was going to injunct me for returning to the work I trained for, or the Bar Standards Board for issuing me a practising certificate.
“This report should start a conversation about a pathway to return. I predict the MoJ will studiously decline to comment.”
Her Honour Judge Kaly Kaur KC, who co-founded the Judicial Support Network, wrote in response that about 50 judges have approached the network “indicating that they would like to return to practice if it were easier and there was a formal exit strategy”.
She continued: “Below the High Court, I can’t see the issue. We have little enough influence as ordinary judges – as former judges we wouldn’t be in any different position from recorders/deputy High Court judges or any fee-paid judge.
“Indeed, there should be a way to return to part-time appointment. For many of us, part-time appointment was a great privilege and we would still be able to play a role but one that was much reduced. Flexibility and fairness is key.”
Dr Victoria McCloud, a King’s Bench master, commented that “arguably various ‘conventions’ which were based on trust fell away when judges’ pensions were unlawfully cut after appointment in a discriminatory way”.
This followed a ruling in a claim she herself brought. Master McCloud added: “Indeed in that case, the government positively relied on an argument judges could earn money outside [a] judicial career.”
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